Amaca Pty Ltd v State of New South Wales [2003] HCA 44

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

AMACA PTY LIMITED (Formerly known as APPELLANT

James Hardie & Coy Pty Limited)

AND

THE STATE OF NEW SOUTH WALES & ANOR RESPONDENTS

Amaca Pty Ltd v State of New South Wales

[2003] HCA 44

7 August 2003

S389/2002

ORDER

1. Appeal allowed with costs.

2. Set aside the order of the Court of Appeal of New South Wales dated 12 December 2001.

3. Remit the matter to that Court for further hearing and determination conformably with the reasons of this Court.

On appeal from the Supreme Court of New South Wales

Representation:

F M Douglas QC with G M Watson SC and T G R Parker for the appellant (instructed by Allens Arthur Robinson)

J M Ireland QC with J F Burn for the first respondent (instructed by Crown Solicitor for New South Wales)

No appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

AMACA Pty Limited (Formerly known as James Hardie & Coy Pty Limited) v The State of New South Wales & Anor

Tort – Joint tortfeasors – Contribution – Contribution claimed from third party not found or admitted to be liable to injured plaintiff – Whether claim could be dismissed without first deciding whether third party would if sued have been liable to plaintiff.

Tort – Joint tortfeasors – Contribution – Exemption from liability to contribution – Circumstances in which exemption may be granted.

Appeal and New Trial – Appeal to Court of Appeal of New South Wales – Appeal if error in point of law – Court of Appeal to consider whether appeal to that Court should be dismissed on ground that third party owed injured plaintiff no duty of care.

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1), (2).

Dust Diseases Tribunal Act 1989 (NSW), s 32.